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BUSINESS JUDGEMENT deference & Occupier's SECURITY DUTY : Friedrich v. M.T.C.C. # 1018, 2019/02/21 00:58  
Both sides with counsel, Toronto jurist Mr Justice F.L. Myers awards $ 5 K costs to respondent condo corp in endorsing & upholding an un-detailed lower court ( ? unreported Small Claims with Divisional appeal ) claim confirmed lost by a condo owner.

( This again ain't legal advice : Ontario "Occupiers" are not "guarantors", the relevant act generally raising a DUTY only of "reasonable" steps to keep persons or property safe ( exceptions applicable of course ). Further, duty-complying condo governance duties under Ontario's Condominium Act 1998 are generally not as "guarantors" either. How firm are the grounds for an owner to win compenation for loss or injury, much less a form of "derivative" remedial intervention by a court ? . . .

The text here indicates that the losing condo owner brought forward only the occurrence of vandalism ( ? his own financial loss ? ), apparently failing to try establishing a credible causal connection to some sort of shortfall of duty or risk altered by changing security measures at access point to the U/G parking. )

But this decision at least adds one judicial expression as to what specifics might a modern Ontario court think passes the test of keeping reasonably safe involving common element underground garage issues.

In Friedrich v. M.T.C.C. #1018 Justice Myers holds that such change decision :

met what he calls “STANDARD “ ( sic ) of care to U/G users under OLA Occupiers' Liability Act RSO 1990 ch O.2


is entitled to judicial deference under a “business judgement” entitlement. ( Quote : "(3) "Under the Condominium Act, 1998, the Board’s business judgment is entitled to deference" - unquote.

But where is that within the text of that Act itself, as opposed to some jurisprudence ?

Business Judgement shields have been addressed far wider than in Ontario condo disputes. 'Has long been laboured in that same vineyard' etc . . . eg See some cafcor topics below. They are widespread shields against condo / HOA / POA beefs in the U.S.

Whether the security changes were a breach of "DUTY OF CARE" by the governancers, Mr Justice Myers applies the phrase "standard of care" instead of the literal wording of Ontario's Occupiers' Liability Act ( "duty of care" ).

It's a distinction for example once clarified differently in certain televised hearings of Canada's Supreme Court. Maybe only that court cares if at all.

The "duty" discussion could have also started with corporation duties broadly stated within Ontario's Condominium Act 1998 as amended. Maybe bottom line outcome no different.

Friedrich v. MTCC No. 1018, 2019 ONSC 1153 issued Feb 19/19

* *

Several condo litigation outcomes directly/indirectly addressing the Business Judgement shield :

- Reminiscent of "derivative" remedy sought for all corporation shareholders; NOT a previous Cafcor item : Patterson v Y.C.C. # 70 et al 2018 ONSC 3735 issued Aug 8/18 ( REJECTS s 134 application by a former Director against Condo Corp ( current Board ) & one Director. Expressly concurring with the Board's raised defence shield of "Business Judgement", the adjudicator "cannot find that court intervention is required" ; 7 weeks later awards winning defendants $ 14.7 K of the $ 41 K the defenders claimed incurred to defend “on a substantial indemnity basis". = a process that didn't come cheap. Addendum : appeal rejected by ONCA April 24/19 )

- “BUSINESS JUDGEMENT trumps Declaration & Oppression remedy: resuming PAY PARKING Carleton CC #375”

- less direct but inherent discussion of Business Judgement :

CHEUNG v Y.R.C.C. # 759 PARKING ALLOCATION by-law HELD NOT OPPRESSIVE at Richmond Hill eatery
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now SRL vandalism victim's unusual appeal barred as too late : Friedrich v. M.T.C.C. # 1018, 2019/03/21 00:30  
Another reason to chose battles carefully & to rely on competent professional counsel.

But adds an insight into ultra-tight appeal deadlines arguably designed to extinguish small claims.

And arguably its a mild statement from Ontario's appeal court that "the small stuff" REALLY should be left behind at lower tiers instead of adding to the intense congestion above

( "On the docket today Your Honour :

# 1 bankruptcy leaves creditors & employees high & dry.
# 2 tragic accident leaves dependents without food on table.
# 3 condo owner claims Board's business judgement cost him insurance deductible.
" )

Some obscure deadlines to appeal with leave from Divisional Court

Vandalism victim Mr Friedrich - NOW S.R.L. self represented - learns that filing about alleged underground condo garage damage in Small Claims summary process court - instead of a section 134 or whatever in upper tier of Ontario Superior Court - BUT LOSING, faces some VERY SHORT DEADLINES.

And now also needed leave to appeal after Divisional Court is through with you.

Bigger picture, was it smart to expect any judge to strike down an arguably "reasonable" condo governance discretion ?

( see Courts of Justice Act RSO 1990 ch C.43 sec 22- 33.1 AND COMMENTS in latest : Friedrich v. MTCC #. 1018, 2019 ONCA 216 issued March 19/19

xcrpted quick reply from a Court of Appeal judge where the appeal could have been flatly ignored :

" . . .[3] Mr. Friedrich was obliged to bring a motion for leave to appeal within 15 days of the appeal decision, according to r. 61.03.1 (3) (a) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194.

The delay in this case was more than 20 days beyond the applicable appeal period.

It appears that neither Mr. Friedrich, nor his previous counsel, nor counsel who swore the jurat in his affidavit, was aware that the appeal period was 15 days.

[5] . . . .his prior counsel, he says, abandoned him. The explanation for the delay is adequate. There is no prejudice to the responding party.

The issue is whether the appeal has merit.

[6] Mr. Friedrich seeks to bring a second appeal to this court, having already had one appeal before the Divisional Court.

The standard for leave to appeal to the Court of Appeal from a decision of the Divisional Court is set out in Re Sault Dock Co. Ltd. and City of Sault Ste. Marie, 1972 CanLII 572 (ON CA), [1973] 2 O.R. 479 (C.A.), and cases following it.

The focus is the public importance of the issue proposed to be raised in the appeal.

[8] . . . This is not a case of public importance.

[9 . . . The motion is dismissed with costs payable by Mr. Friedrich to the responding party in the amount of $1,000 all-inclusive. " - unquote
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